The existence and scope of the duty of care
58The general duty owed by a medical practitioner was stated by the High Court in Rogers v Whittaker [1992] HCA 58; (1992) 175 CLR 479 at 483 in the following terms:
"...The law imposes on a medical practitioner a duty to exercise reasonable care and skill in the provision of professional advice and treatment. That duty is a "single comprehensive duty covering all the ways in which a doctor is called upon to exercise his skill and judgment"; it extends to the examination, diagnosis and treatment of the patient and the provision of information in an appropriate case. It is of course necessary to give content to the duty in the given case.
The standard of reasonable care and skill required is that of the ordinary skilled person exercising and professing to have that special skill."
59Brennan CJ in Breen v Williams [1996] HCA 57; (1996) 186 CLR 71 at 78 observed:
"In the absence of special contract between a doctor and a patient, the doctor undertakes by the contract between them to advise and treat the patient with reasonable skill and care... A duty, similar to the duty binding on the doctor by contract, is imposed on the doctor by the law of torts..."
60The plaintiffs have sued upon an implied term of the agreement between the parties and in tort. The defendant has accepted that he owed the general duty of care to the plaintiffs both pursuant to the implied term and in tort. There is a dispute between the parties as to the scope of the duty.
61As Gummow J observed in Roads and Traffic Authority of NSW v Dederer [2007] HCA 42; (2007) 234 CLR 330 at [43]:
"Although the existence of a duty of care owed by the RTA to Mr Dederer was not in dispute, two points must be made about the nature and extent of that obligation. First, duties of care are not owed in the abstract. Rather, they are obligations of a particular scope, and that scope may be more or less expansive depending on the relationship in question. Secondly, whatever their scope, all duties of care are to be discharged by the exercise of reasonable care. They do not impose a more stringent or onerous burden."
62The plaintiffs contended that the scope of the duty extended to the protection of the plaintiffs from harm of the type which they claim to have suffered, namely physical, including psychological, damage and economic loss associated with having, raising and caring for Keeden consequent upon Keeden suffering severe permanent physical disabilities.
63The defendant denied that such matters were within the scope of the overall duty as damage of the nature claimed was not a reasonably foreseeable consequence of the acts and omissions the plaintiffs alleged against him. This aspect will require consideration of issues which are also relevant to remoteness and causation and will be considered later in this judgment.
64The particulars of duty ultimately pressed by the plaintiffs may be summarised as follows:
(a) to raise with the plaintiffs the issue of potential inheritability of ATD;
(b) to explain to the plaintiffs the purpose of the referral. It was not explained and, as a consequence, the plaintiffs did not know the purpose of the referral;
(c) to properly refer the plaintiffs to an appropriate person such as a genetic counsellor to find out further information on the topic (or alternatively to inform himself and then provide that information personally to the plaintiffs). The mode of reference, by use of the post it note, was not proper and indicated to the plaintiffs the matter was of little significance;
(d) to follow up the plaintiffs to ascertain what had occurred with Ms Duggan;
(e) to raise the possibility of using donor sperm as a means of potentially avoiding transmission of ATD.
65The defendant denied that the scope of his duty extended to the matters in the preceding paragraph.
66In the absence of express contractual terms (which are not here alleged) the scope of the duty, whether in contract or in tort, is to be determined as a matter of law informed by the circumstances of the case and accepted professional standards.
67In Rogers v Whitaker at [487] it was held:
"...Further, and more importantly, particularly in the field of non-disclosure of risk and the provision of advice and information, ... it is for the courts to adjudicate on what is the appropriate standard of care after giving weight to 'the paramount consideration that a person is entitled to make his own decisions about his life.'"
68As Gleeson CJ observed in Rosenberg v Percival [2001] HCA 18; (2001) 205 CLR 434 at 439 [7]:
"...the relevance of professional practice and opinion was not denied; what was denied was its conclusiveness. In many cases, professional practice and opinion will be the primary, and in some cases it may be the only, basis upon which a court may reasonably act. But, in an action brought by a patient, the responsibility for deciding the content of the doctor's duty of care rests with the court, not with his or her professional colleagues."
69The plaintiffs and the defendant each called an expert, (Dr O'Loughlin and Professor Saunders respectively), to give evidence on the question of breach/scope of duty. There was a large measure of agreement between the experts. The joint expert report dated 29 November 2011 recorded the following:
"1 Was it a departure from reasonable professional standards for an obstetrician and gynaecologist practising in the area of infertility in 1999, for Dr James:
(a) not to enquire of Mr & Mrs Waller to their understanding of the inheritance of the AT3 mutation by an embryo formed from Mr Waller's sperm;
Difference of opinion - see individual answers.
Professor Saunders: No There was in 1999 no inheritance test or information. Infertility specialist would have relied on the previous haemalogical diagnosis and treatment and the patient information, particularly as it was perceived to be a multi-factorial adult disease.
Dr O'Loughlin: Yes I believe it was appropriate for Dr James to ensure that they understood clearly the inheritance nature of the AT deficiency disease.
(b) not to warn Mr & Mrs Waller that all embryos from Mr Waller's sperm carried, statistically, a 50% chance of inheriting the AT3 mutation;
Difference of opinion - see individual answers
Professor Saunders: No This is a difficult question that I cannot answer for what may have occurred in 1999.
Dr O'Loughlin: Yes particularly in view of the high risk of transmission.
(c) not to inform Mr & Mrs Waller that an accurate prediction could not be made as to how severely the quality of life and disabilities of an AT3 affected embryo would be if such an embryo were transferred to the Mrs Waller's womb to create a pregnancy and was subsequently carried to term and born alive thereafter;
Joint Answer
No. We do not believe that the detailed knowledge regarding the variable and unpredictable nature of the condition was within Dr James' expertise as an infertility specialist and that such detailed information should have been sourced at this time from Mr Waller's treating doctors.
(d) not to obtain an opinion and report from a qualified genetic counsellor on the risks of transmitting AT3 to any child of Mr & Mrs Waller using artificially assisted human reproduction procedures;
Difference of opinion - see individual answers
Professor Saunders: No but difficult. He sought an opinion but did not get the opinion.
Dr O'Loughlin: Yes No opinion was obtained.
(e) not to ascertain the range of clinical outcomes for persons affected by the AT3 deficiency.
Joint Answer
No. Whereas we would expect Dr James to inform himself of the nature and clinical aspects of AT deficiency, this detailed information should have been accessed at this time from Mr Waller's expert treating doctors to enable them to make an informed decision. The ultimate decision whether to proceed with IVF was in the hands of the Waller's and not Dr James.
2. In 1999 would a reasonable obstetrician and gynaecologist practising in the area of infertility in 1999, knowing that Mr Waller suffered from the AT3 condition, have regarded it as necessary to refer Mr and Mrs Waller to a genetic counselling if they had not requested it?
Joint Answer
Yes, and in fact he did refer them for counselling.
3. Was it a departure from reasonable professional standards for an obstetrician and gynaecologist practising in the area of infertility in 1999, for Dr James:
(a) to recommend that Mr & Mrs Waller consult a qualified genetic counsellor (Ms Duggan) for the investigation of and or provision of advice as to the possibility that the AT3 deficiency could be transmitted during IVF in whole or in part by providing them with the details of the counsellor in the form of the document at Annexure A without a written letter of referral; and/or
Joint Answer
Yes, Some form of referral should have been made, preferably in writing or verbally by phone and recorded in the clinical notes.
(b) not to ask Mr & Mrs Waller at subsequent consultations about the advice or information or services they had received from Ms Duggan.
Joint Answer
Yes, However if Dr James had recorded the reference in his clinical note it is likely that this would have triggered such an enquiry.
4. Would a reasonable obstetrician and gynaecologist practising in the area of infertility in 1999, in the position of Dr James, who had been told that Mr Waller suffered from the AT3 deficiency, and had recommended that the plaintiffs consult a genetic counsellor, also have informed himself as to any or all of the following matters before providing IVF treatment to Mr & Mrs Waller:
(a) the possibility that a child conceived from Mr Waller's sperm would inherit the AT3 mutation;
(b) the possibility that any such child would develop symptoms of the AT3 deficiency over his or her lifetime; and/ or
(c) the risk of thrombosis associated with inherited AT3 deficiency to a neonate or child.
(d) the range of clinical outcomes for persons affected by AT3 deficiency.
Please indicate whether your answers would alter, on the assumption (in the alternative to assumption D) that Dr James recommended that the plaintiffs consult a genetic counsellor regarding Mr Waller's low sperm count.
Joint Answer
Whereas we agree that it would be appropriate for Dr James to have informed himself about the nature and potential of the disease the detailed information as outlined in (a),(b),(c) and (d) could not reasonably be expected to be within his expertise. A referral back to Mr Waller's treating doctors would have been appropriate for this advice.
We believe that if a genetic cause for oligo spermia was determined it would have been within Dr James' expertise to provide the appropriate counselling.
5. Please assume that, at or shortly after the consultation on 3 March 1999, Dr James had informed himself of relevant information (available as at March 1999) as to:
(a) the possibility that a child conceived from Mr Waller's sperm would inherit the AT3 mutation;
(b) the possibility that any such child would develop symptoms of the AT3 deficiency over his or her lifetime; and
(c) the risk of thrombosis associated with inherited AT3 deficiency to a neonate or child.
(d) the range of clinical outcomes for persons affected by AT3 deficiency.
What advice or information should a reasonable obstetrician and gynaecologist practising in the area of infertility in 1999, in the position of Dr James and possessed of such knowledge, provide to Mr & Mrs Waller?
Please include in your answer, any advice that should have been provided as to the significance of the risk of thrombosis associated with inherited AT3 deficiency to a neonate or child.
Joint Answer
Given that Mrs Waller did not have AT deficiency, the generally mild nature of the disease in adults, it's multi-factorial associations, the fact that the condition is manageable with appropriate treatment, the fact that there is no significant increased mortality over that of the general population, and the fact that a neonate and a child would most unlikely be affected by thrombotic episodes, we agree that it would have been appropriate for Dr James to proceed with IVF provided the Waller's were agreeable.
We believe that if Dr James had obtained the detailed information re AT deficiency from the Waller's treating doctors or from his own investigation then he would have been in a position to offer advice on this matter.
6. Was it a departure from reasonable professional standards for an obstetrician and gynaecologist practising in the area of infertility in 1999, for Dr James:
(a) not to have formed the opinion and advised Mr & Mrs Waller that any IVF procedures which would use Mr Waller's sperm (and embryos made from that sperm) were unreliable and contra indicated and should not be carried out;
Joint Answer
No. The procedures were not unreliable and were not contraindicated.
(b) not to inform Mr & Mrs Waller that the risk of transferring an embryo to Mrs Waller that carried the AT3 mutation could be avoided by using sperm obtained from an anonymous sperm donor who did not have a family history of AT3;
Joint Answer
There is no evidence that Dr James had a conversation with the Waller's prior to IVF offering an alternative in the form of donor insemination with a screened anonymous donor given the AT deficiency and oligospermic problems. This may or may not have been acceptable given economic and other considerations and the geographic dislocation necessary. However we believe that this alternative should have been offered.
(c) not to ensure that only embryos which were not affected by AT3 deficiency were transferred to Mrs Waller on 14 November 1999; and/or
Joint Answer
No. Pre Implantation Genetic Diagnosis was not available in 1999.
(d) to use Mr Waller's sperm in the IVF procedures with Mrs Waller's eggs to facilitate the formation of embryos for implantation into Mrs Waller.
Joint Answer
No. Provided the Waller's had been adequately informed and understood the risks associated including those of genetic inheritance."
70There was a difference of opinion between Dr O'Loughlin and Professor Saunders in respect of para 1(a), (b) and (d) of the joint report. Upon reflection Professor Saunders agreed with Dr O'Loughlin in respect of para 1(a) and (b). Professor Saunders also agreed with Dr O'Loughlin that there was a departure in respect of para 1(d). I note that in respect of answer 1(b) the defendant did not at that time have the knowledge to be specific as to the 50% chance of inheriting ATD.
71Professor Saunders sought to withdraw his answer to question 2. Under cross-examination he gave the following evidence:
Q: Now we've been over a whole lot of things, the assumptions that you say you would make and whether or not they're reasonable, the understandable lack of knowledge about this condition in 1999, among other things. Can I suggest to you that, upon reflection, as reluctant as you are, understandably, to criticise a fellow practitioner that nonetheless, upon reflection, reluctant though it might be, which is understandable, you stand by, don't you, without modification, your answer to question 2 as recorded in the joint report?
A: Yes. As long as you accept my reluctance and the fact that I would not have done it myself. The Court accepts that."
In re-examination he said:
"Q: Based on that bundle of material in November you agreed to the answer, yes. Okay. Now forgetting Mr Higgs' assumptions, what is your position on question 2?... taking into account what you had in the bundle?
A: Of course, it comes down to the word reasonable. It comes down to the word reasonable. In 1999 would a reasonable obstetrician and gynaecologist, me, hopefully, knowing that someone had required it as necessary to refer to a genetic counsellor if they had not requested it. And you can understand that this is difficult. As you might perceive, there's been a vacillation here. And it comes down to how I define the word reasonable.
Now I would have presumed that I, in 1999, would have been a reasonable obstetrician. So, I'm putting myself in this. So, that's when I came back to the, I would not have done it. That's why I said, being a reasonable person, that I would not have said yes. I'd have said it's not reasonable because I would not have done it. This is as far as I can go.
Q: Is that still your position?
A: "Yes."
72In the circumstances I regard Professor Saunders' evidence in relation to question 2 as equivocal.
73In the course of the evidence five factors were identified by Dr O'Loughlin and agreed to by Professor Saunders as relevant to determining whether there was a duty to refer for genetic counselling. They were:
(a) the chance of inheritance;
(b) the significance of the condition if inherited;
(c) the commonality of the condition;
(d) the patient's own perception of the condition;
(e) the extent to which the condition can be managed in the prospective child.
74Dr O'Loughlin considered that the application of those factors in this case led to the conclusion that a duty was owed to inform the plaintiffs of the hereditary aspects of ATD but it did not mean the plaintiffs should not have children. He did not accept that ATD was in "the grey area where reasonable people might disagree" as to whether it was sufficiently significant as to require it to be brought to the patient's attention. Professor Saunders was of the opinion that the issue involved subjective judgment and was within the "grey area".
75The defendant gave evidence impacting on the question of the scope of his duty. His evidence was that:
(a) there was a need for the plaintiffs to have access to a genetic counsellor so as to reach an informed view as to the concerns about passing on the condition of ATD;
(b) it was his obligation to give the couple an opportunity to understand and alter their course toward pregnancy - if they wished;
(c) he would expect someone in his position to provide a referral and a referral to Ms Duggan was important;
(d) he meant to convey at the first consultation that genetic counselling was something that the plaintiffs should do (albeit it was up to them);
(e) it was desirable to have up to date information in what was a time of rapid advancement in knowledge in this area particularly where, as here, a fertility question had arisen and there was a significant possibility of IVF;
(f) it was unreasonable not to keep contemporaneous notes to prompt a recollection of a referral.
(g) the referral to Ms Duggan was part of his work-up responsibilities described in the IVF pamphlets given to the plaintiffs at the first consultation;
(h) the IVF pamphlets which were signed by the plaintiffs as having been received and read contained the following references:
"As well as fertility treatment, Sydney IVF also specialises in all aspects of genetic analysis to do with fertility and pregnancy, including prenatal testing, preimplantation, genetic diagnosis, and specialised diagnostic tests for genetic diseases such as cystic fibrosis and fragile x."
There was also reference to the availability of donor sperm.
(i) it was important to convey to the plaintiffs the desirability of getting genetic counselling and that they understood the reason why it was desirable;
(j) it was part of his usual practice to go over all options with patients particularly if he had a letter from a geneticist. He agreed it was important that patients be given as much information as possible and part of his role was to assist them to understand the advice they had been given by the geneticist. He would see the patient after receipt of advice from a genetic counsellor if they wished to return.
76Insofar as the plaintiffs allege a duty on the defendant to inform himself and advise them, I accept the evidence of Dr O'Loughlin that:
"...I wouldn't expect an infertility doctor to be aware of the myriad range or the range of these conditions, the full range, but I would expect an infertility doctor to be aware of some of those conditions which have a strong inheritance association and, if inherited, have the potential to cause significant morbidity to an offspring.
Q: ...Given the limits that an IVF doctor or a fertility doctor is going to have in his or her knowledge about these type of genetic conditions, frequently it will be better for them to refer a patient who needs to find out this information off to a genetic counsellor a genetic clinician or perhaps a specialist in a particular area to find out that information, you'd agree?
A: Yes, I'd agree with that.
...
Q: ...The key issue then for you, Dr O'Loughlin, in dealing with this duty that we've been discussing is to put the patient or patients in the position to be able to access that information, you'd agree?
A: Yes.
Q: And that doesn't necessarily mean, and commonly won't mean, the fertility doctor himself or herself providing that information?
A: Yes.
Q: Commonly, not always, but commonly it will be better coming from one of those other types of specialists we've spoken about?
A: Yes.
Q: When I use the word 'specialist', I include the genetic counsellors, even though they are not doctors. You understood that?
A: Yes.
...
Q: Just to be clear, whether the duty is filled through a referral of or through the doctor informing himself it is the one duty we are speaking about?
A: Yes, the duty to make sure the patients properly informed.
Q: That's right. So where I have been using the shorthand, 'duty to refer', you understood that to be effectively what you have now just called the duty to inform through whatever appropriate means are available.
A: Yes. To inform by the best means available and, in general terms, in my view, that would be to refer."
77Thus the duty owed by the defendant to supply the relevant information is a single duty which he could fulfil either by obtaining the necessary information himself from source or other material or by referring the plaintiffs to an appropriate genetic consultant and, if necessary, by following up that referral.
78The duty of a medical practitioner "extends to the...provision of information in an appropriate case"- Rogers v Whitaker at 483.
79In F v R (1983) 33 SASR 189, King CJ said:
"What a careful and responsible doctor would disclose depends upon the circumstances.
...
The purpose of disclosure is to provide the patient with the information necessary to enable him to make informed decisions concerning his future.
...
The extent of the duty to disclose must depend greatly upon the patient's expressed or apparent desire for information:.."
80The scope of the duty of care "may be more or less expansive depending on the relationship in question - RTA v Dederer at [43] and will depend "upon the precise facts of the relationship between the doctor and the patient" - Tai v Ivy Hatzistavrou [1999] NSWCA 306. The standard is that of the ordinary skilled person exercising and professing to have the special skill, in this case, the skill of a gynaecologist with a sub speciality in infertility and IVF - Rogers v Whitaker at 483.
81In Caltex Refineries (Qld) Pty Ltd v Stavar [2009] NSWCA 258 Allsop P (with whom the other members of the Court agreed) held:
"[102] ... If the circumstances fall within an accepted category of duty, little or no difficulty arises. If, however, the posited duty is a novel one, the proper approach is to undertake a close analysis of the facts bearing on the relationship between the plaintiff and the putative tortfeasor by references to the "salient features" or factors affecting the appropriateness of imputing a legal duty to take reasonable care to avoid harm or injury."
[103] ... His Honour here set out 17 "salient features". He then continued:
"[104] There is no suggestion in the cases that it is compulsory in any given case to make findings about all of these features. Nor should the list be seen as exhaustive. Rather, it provides a non-exhaustive universe of considerations of the kind relevant to the evaluative task of imputation of the duty and the identification of its scope and content."
82Usually issues as to disclosure of information arise in the context of a risk in a procedure where the procedure is to be carried out by the treating doctor within his area of expertise. In those situations the accepted principle is that stated in the following terms in Rogers v Whitaker at 490.9:
"...The law should recognize that a doctor has a duty to warn a patient of a material risk inherent in the proposed treatment; a risk is material if, in the circumstances of the particular case, a reasonable person in the patient's position, if warned of the risk, would be likely to attach significance to it or if the medical practitioner is or should reasonably be aware that the particular patient, if warned of the risk, would be likely to attach significance to it...."
However the duty to disclose is not confined to proposed treatment see eg - PD v Dr Nicholas Harvey [2003] NSWSC 487.
83The duty is a continuing one. As Priestley JA said in Tai:
"[75] It would seem that all of the cases referred to in the text are, to a greater or lesser degree, distinguishable on their facts from those in the present appeal. They appear however generally to support the view that, depending upon the precise facts of the relationship between the doctor and the patient, when a doctor is treating a patient for what may be a serious health problem, and the doctor thinks it necessary, even if only for prudential reasons, that the patient should submit to a particular surgical procedure, then the doctor has a continuing duty to advise the patient to submit to the surgical procedure, so long as the doctor/patient relationship is on foot. This does not mean that the doctor should seek to impose the doctor's view upon the patient against the patient's will, but it does mean that the doctor has a duty to keep the doctor's opinion and advice before the attention of the patient so that the patient can decide upon the patient's course in light of up to date knowledge of the doctor's opinion."
84The primary duty to give information to the second plaintiff as to the hereditary aspects of ATD rested with the haematologist who treated the second plaintiff for DVT and PE whilst the relationship of doctor and patient subsisted and with Dr Ramakrishna when specifically consulted in this regard. Such a duty by a treating haematologist was accepted by Dr Monagle as being clearly owed. It was apparent from the evidence given by Professor Saunders that he expected the treating doctor would have given such information to the patient.
85As Dr Amor stated:
"Genetic advice regarding the inheritance of AT3 deficiency would usually be offered at the time of initial diagnosis of AT3 deficiency. If Mr and Mrs Waller had requested additional genetic advice at the time of contemplating pregnancy, then it would have been appropriate for further genetic counselling be offered."
86The defendant submitted the relationship between the plaintiffs and the defendant did not give rise to the duty contended for as:
(a) the defendant was not a geneticist or haematologist. He was a gynaecologist with a sub speciality in infertility and IVF;
(b) as such he could not be expected to be aware of the "myriad range" of genetic conditions, or to have detailed information of any given genetic condition or the risks inherent therein;
(c) the duty to provide genetic advice lay elsewhere;
(d) the defendant had been retained to assess a fertility assistance problem. The plaintiffs had not sought advice from him about ATD and did not rely on him for any advice in that regard;
(e) the defendant did not believe the plaintiffs wanted any advice from him about the hereditary aspects of ATD. At no consultation did either of the plaintiffs raise the topic of genetic counselling, inheritance or any concerns in relation to ATD. After the first consultation the defendant did not have the impression the plaintiffs had any particular interest in knowing whether the second plaintiff's condition had a genetic element. The defendant's recommendation was not in response to any concerns that the plaintiffs had expressed about the condition. It was done in accordance with his usual practice. See para [42];
(f) the five factor test upon which Dr O'Loughlin and Professor Saunders had agreed would be impractical in its application by reason of the different views that may be held as to the seriousness of a given condition and the limited knowledge of the gynaecologist as to the condition;
(g) the defendant by his concessions in evidence could not create a duty of care resting upon him where such a duty would not otherwise exist;
(h) the defendant was entitled to assume that if the plaintiffs wanted to know about the potential for inheritance of the condition they would take the opportunity to follow his recommendation and see Ms Duggan. It was their right not to do so, if they wished;
(i) a number of "salient features" supported the submission that there was no duty owed;
(j) this was not a failure to warn case. It was an opportunity to obtain information case. Tai's case, which was a failure to warn case, was quite different. The factors that were relevant in imposing a duty in that case and which were not present here were:
(i) reasonable to expect the doctor to be in a position to advise;
(ii) there may be a serious health problem;
(iii) the information sought could affect treatment; and
(iv) the doctor thought it was necessary, if only for prudential reasons, for the patient to submit to the recommended procedures.
87The plaintiffs submitted the relationship did give rise to the alleged duty as:
(a) the defendant was aware, as a result of the terms of the letter of referral to him, that the second plaintiff had ATD. This was confirmed at the first consultation;
(b) he was aware ATD may have the potential to be genetically inherited by the offspring of a person suffering that condition;
(c) one would expect a infertility doctor to be aware of some of those conditions which have a strong inheritance association and, if inherited, have the potential to cause significant morbidity to an offspring. The defendant was aware of conditions such as Down Syndrome, Fragile X Syndrome and Cystic fibrosis which were in that category. However there were situations where the condition was less significant than those but nevertheless sufficiently significant as to require the provision of information by the doctor or referral;
(d) the defendant's own practice, as set out in his answer to interrogatory 14 [42] illustrates that it was practicable to identify matters arguably in the grey area and to refer the parties to a genetic consultant in relation thereto;
(e) there was no evidence that the referral was intended to be without legal effect;
(f) the first plaintiff, prior to Keeden's birth, had not received any information directly from any qualified person as to ATD. She relied upon what the second plaintiff told her;
(g) the defendant did not know whether the plaintiffs had received any information as to the hereditary aspects of ATD;
(h) even if the plaintiffs had received such information it may not have been absorbed at the time, or have been misunderstood or since forgotten;
(i) the need for the plaintiffs to receive accurate and adequate information was of significance to the plaintiffs. The plaintiffs should have been given all information reasonably relevant to the exercise of their choice;
(j) compliance with the duty could take place at any of the consultations prior to the transfer of the embryo and would involve no expense difficulty or inconvenience;
(k) the information was also of relevance to the defendant as he was aware there was a significant possibility he would embark on a course of action that could lead to the birth of a child with a permanent medical condition of some significance;
(l) the defendant assumed a degree of responsibility by providing the referral at his own initiative. One of the "salient features" specifically referred to in Caltex at [103f] was "any assumption of responsibility" by the defendant. This was in addition to other salient features which supported the existence of a duty;
(m) the defendant, being on notice of the second plaintiff's ATD and that it may be transmittable, should not have proceeded to implant an embryo without ensuring the plaintiffs were adequately informed and understood the hereditary aspects of ATD or had decided (as they were entitled to do) that they did not require that information. This involved a duty to follow up the referral.
88That the defendant was subject to such a duty was supported by Dr O'Loughlin and Professor Saunders in their evidence generally and in paras 1, 2 and 3 of their joint report (subject to a rider in respect of Professor Saunders' evidence re question 2) and by the evidence of the defendant himself. I have given considerable weight to the evidence of the medical practitioners in determining whether a duty was owed.
89I accept the primary duty to inform the plaintiffs of the hereditary aspects of ATD did not rest with the defendant. I accept that the defendant was a fertility doctor and not a geneticist and not equipped to provide an expert opinion on hereditary aspects of ATD. However the defendant knew the second plaintiff had ATD, he knew there was a possibility any child of the plaintiffs may inherit the condition and he knew that the first plaintiff was very likely, as part of the IVF treatment, to undertake a procedure which would involve transferring the plaintiffs' embryo to the first plaintiff.
90The plaintiffs' knowledge as to the hereditary aspects of ATD was unknown to the defendant and may have been non-existent. The inheritance of ATD by the plaintiffs' child was a matter of significance. In these circumstances to impose a duty on the defendant to inquire of the plaintiffs' as to their knowledge of the hereditary aspects of ATD, to explain the desirability and purpose of a referral of a genetic counsellor or geneticist and, if appropriate, to arrange such referral and to follow up the referral would not involve expense, difficulty or inconvenience for the defendant and does not appear unreasonable.
91In my opinion the defendant, in the circumstances of this case and subject to the considerations raised in [63] owed a duty of care to the plaintiffs to ascertain if the plaintiffs were aware that ATD was potentially inheritable; to explain to the plaintiffs the purpose of the proposed referral; to properly refer the plaintiffs to an appropriate person for the obtaining of that information subject to the plaintiffs' agreement. It was also the duty of the defendant, whilst the doctor/patient relationship continued, to ascertain if such consultation had taken place and if it had not to make further inquiry as to the reason why the consultation had not occurred and to reinforce the reasons why it would be desirable to consult with the genetic consultant or a geneticist.
92In my opinion (subject to the overriding considerations raised in [63], remoteness and causation) the defendant owed a duty to the plaintiffs generally as alleged in [64(a)-(d)].
93The plaintiffs also alleged there was a duty to inform them as to the availability of donor sperm. There was little support for this among the experts.
94Professor Saunders was not aware from his experience or study of any cases where anonymous donor sperm had been offered to a couple where one patient had ATD. He confirmed that ATD did not require the raising of the issue of donor sperm.
95The joint report of the causation experts (Professor Monagle, Professor Amor and Associate Professor Evans) recorded:
"We all agree donor sperm was available in 1999; however it would have been very unusual for a couple to utilise donor sperm for AT deficiency, given that AT deficiency is typically a mild condition that in the vast majority of cases can be effectively managed."
96Professor Monagle confirmed that he would not have raised the issue of sperm donation. He considered there was no logical rationale to raise that issue in advising people as to the issue of inheritance when having children. Dr Amor was of a similar opinion.
97Dr O'Loughlin alone thought the question of donor sperm should have been raised with the plaintiffs though he accepted it was quite likely they would not have accepted the option.
98The defendant did not advise the plaintiff as to the availability of donor sperm. He expressed no opinion on this issue in his evidence.
99In any event the second plaintiff gave evidence he knew of this option when he first consulted the defendant. The first plaintiff gave evidence to like effect. She would have been aware of it in any event upon reading the IVF pamphlets handed to her at the first consultation with the defendant.
100In my opinion, no duty in relation to advice as to the availability of donor sperm has been established.